Fordyce v. Hathorn
| Decision Date | 31 July 1874 |
| Parties | J. M. FORDYCE, Plaintiff in Error, v. I. N. HATHORN, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Cole Circuit Court.
E. L. Edwards & Son, for Defendant in Error.
G. T. White, for Plaintiff in Error.
This was an action commenced under the landlord and tenant act, by attachment, for the recovery of rent payable in kind. The cause was tried on an amended petition.
The defendant, in the same answer, set up matter in abatement of the attachment and also defenses in bar of the action.
The court on motion of plaintiff struck out the matter in abatement. In this we think there was no error. Where matters in abatement and bar are contained in the same answer, the matter in abatement is waived by the defenses in bar. (Cannon vs. McManus, 17 Mo., 345; Rippstein vs. St. Louis Mut. Life Ins. Co. Mo., (57 Mo. 86.)
It was also contended by the counsel for the defendant that the plaintiff had no right to amend his petition as it was a suit by attachment under the landlord and tenant act. He would certainly have no right to entirely change the cause of action so as to maintain the attachment against a plea in abatement. But if the defendant appears to the action, and files an answer in bar, I see no reason why the petition may not be amended in such actions in the same manner and for like reasons as in other actions.
The case was tried before a jury and resulted in a verdict and judgment for the defendant. The rent sued for consisted in part of the crop of corn which was to be grown on the land, and the material question was as to the place of delivery. The plaintiff contended that the place of delivery was at his barn on a hill some distance from the field, and the defendant contended, that there was no such place named, and that the contract only required him to gather the corn in the field. Each party gave evidence to prove his theory. The instructions presented the different views of the parties fairly to the jury.
On the part of the defendant the court instructed, that if there was no place named by the contract, for the delivery of the rent corn, the defendant might deliver it on the premises in a pen suitable for that purpose. The evidence showed that the defendant was hunting the plaintiff to ascertain where he would have the corn delivered, and the plaintiff claimed that the delivery was to be in his barn on the hill, and the defendant claimed that the delivery was to be made on the premises, and began to deliver on the...
To continue reading
Request your trial
-
Myton v. The Fidelity & Casualty Company
... ... abatement. Audenired v. Hall, 45 Mo.App. 204; ... Harty v. Schuman, 13 Mo. 547; Cannon v ... McManus, 17 Mo. 345; Fordyce v. Haythorne, 57 ... Mo. 120; Greene v. Craig, 47 Mo. 90; McDonald v ... Fist, 60 Mo. 172; Little v. Harrington, 71 Mo ... 390. (5) Appellant is ... ...
-
Moody v. Deutsch
...abatement as to himself, and also to the merits, by denying “each and every allegation set out in plaintiffs' petition.” In Fordyce v. Hathorn, 57 Mo. 120, it is said: “Where matters in abatement and bar are contained in the same answer, the matter in abatement is waived by the defenses in ......
-
Nichols v. Stevens
...115 Mo. loc. cit. 353, 354, 21 S.W. 1071. In Little v. Harrington, 71 Mo. 390, obeying the behests of the Code, we disapproved Fordyce v. Hathorn, 57 Mo. 120, earlier cases, which asserted that matters in abatement and in bar could not be united in the same answer. Little’s Case has frequen......
-
Nichols v. Stevens
...115 Mo. loc. cit. 353, 354, 21 S. W. 1071. In Little v. Harrington, 71 Mo. 390, obeying the behests of the Code, we disapproved Fordyce v. Hathorn, 57 Mo. 120, and earlier cases, which asserted that matters in abatement and in bar could not be united in the same answer. Little's Case has fr......